Biersteker Thomas J., Spiro Peter J., Sriram Chandra Lekha, Raffo Veronica. International law and international relations

Подождите немного. Документ загружается.

6 Crying war 93

MARY ELLEN O’CONNELL

7 Preemption and exception: international law and the

revolutionary power 111

GERRY SIMPSON AND NICHOLAS J. WHEELER

8 Commentary: convergence of international law and

international relations in combating international terrorism –

the role of the United Nations 127

CURTIS A. WARD

PART III

Internally displaced people 139

9 The Guiding Principles on Internal Displacement and the

development of international norms 141

FRANCIS M. DENG

10 Commentary: privately generated soft law in international

governance 166

KENNETH W. ABBOTT

PART IV

International criminal accountability 179

11 The International Criminal Court and universal international

jurisdiction: a return to ﬁrst principles 181

LEILA NADYA SADAT:

12 International humanitarian law: state collusion and the

conundrum of jurisdiction 194

MADELINE MORRIS

13 Whose justice? Reconciling universal jurisdiction with

democratic principles 204

DIANE F. ORENTLICHER

CONTENTS

14 Bringing security back in: international relations theory and

moving beyond the “justice versus peace” dilemma in

transitional societies 222

CHANDRA LEKHA SRIRAM AND YOUSSEF MAHMOUD

15 Commentary: international criminal accountability at the

intersection of law and politics 236

ELLEN L. LUTZ

PART V

Conclusions 245

16 Disaggregating US interests in international law: sketching

a theory of liberal transnationalism 247

PETER J. SPIRO

17 New directions, new collaborations for international law and

international relations 266

MARTHA FINNEMORE

18 International relations and international law: from

competition to complementarity 278

CLARENCE J. DIAS

Selected bibliography 288

Index 309

CONTENTS

NOTES ON CONTRIBUTORS

Kenneth W. Abbott is Professor of Law, Willard H. Pedrick Distinguished

Research Scholar, and Professor of Global Studies at Arizona State Univer-

sity.

Fiona B. Adamson is Assistant Professor of International Relations and Direc-

tor of the Program in International Public Policy at University College

London.

Thomas J. Biersteker is Henry R. Luce Professor of Transnational Organi-

zations at Brown University. He was the director of the Watson Institute for

International Studies at Brown University from 1994 to 2006.

Clarence J. Dias is President of the International Center for Law in Develop-

ment.

Francis M. Deng served in the United Nations as Special Representative of the

Secretary-General on Internally Displaced Persons from 1993 to 2004. He is

currently codirector of the Brookings Institution–Johns Hopkins School of

Advanced International Studies (SAIS) Project on Internal Displacement;

Research Professor of International Politics, Law, and Society at SAIS; and

founder of the SAIS Center for Displacement Studies.

Martha Finnemore is Professor of Political Science and International Affairs at

George Washington University’s Elliott School of International Affairs.

Harold Hongju Koh is Dean and Gerard C. and Bernice Latrobe Smith Profes-

sor of International Law, Yale Law School; and was Assistant Secretary of

State for Democracy, Human Rights, and Labor, 1998–2001.

Ellen L. Lutz, Cultural Survival’s Executive Director, formerly served as the

Executive Director of the Center for Human Rights and Conﬂict Resolution

at Tufts University’s Fletcher School. From 1989 to 1994 she was the Cali-

fornia Director for Human Rights Watch.

Youssef Mahmoud is currently the UNDP Resident Representative and UN

Resident Coordinator in Guyana. Prior to this assignment and for a period of

xii

eight years, he was the Director of the Africa II Division, in the UN Depart-

ment of Political Affairs.

Madeline Morris is Professor of Law at Duke University and Director of the

Duke/Geneva Institute in Transnational Law. She has served as Senior Legal

Counsel, Ofﬁce of the Prosecutor, Special Court for Sierra Leone.

Robert Muggah is the project manager of the Small Arms Survey in Geneva;

he has worked on postconﬂict recovery and reconstruction issues with multi-

lateral and bilateral agencies in over a dozen countries.

Mary Ellen O’Connell is the Robert and Marion Short Chair in Law, Notre

Dame Law School.

Diane F. Orentlicher is Professor of International Law and Codirector of the

Center for Human Rights and Humanitarian Law at American University’s

Washington College of Law. In 2004–5 she served as the United Nations

Independent Expert on combating impunity.

Veronica Raffo is a consultant for the World Bank in the Poverty Reduction

and Economic Management Network, in the Latin America and Caribbean

Region, and was previously Program Coordinator of the Global Security and

Cooperation Program of the Social Science Research Council in Washington,

DC.

William Reno is Associate Professor of Political Science at the Center for Com-

parative International Studies, Northwestern University, Evanston, Illinois.

Leila Nadya Sadat is Henry H. Oberschelp Professor of Law, Washington Uni-

versity School of Law, St. Louis.

Gerry Simpson is Reader in Public International Law at the London School

of Economics and Senior Fellow at the University of Melbourne. He was a

legal adviser to the Australian government on the International Criminal

Court.

Peter J. Spiro is Charles R. Weiner Professor of Law, Temple University,

James E. Beasley School of Law.

Chandra Lekha Sriram is Professor of Human Rights at the University of East

London School of Law and Director of the Center on Human Rights in Conﬂict.

Curtis A. Ward is currently a consultant to Security Council Report. In 2000–1,

he served on the UN Security Council as Deputy Permanent Representative

of Jamaica to the United Nations. He has also served as an independent

expert and adviser to the UN Security Council’s Counter-Terrorism Commit-

tee and its liaison with regional and international organizations.

Nicholas Wheeler is Professor in the Department of International Politics at the

University of Wales, Aberystwyth.

NOTES ON CONTRIBUTORS

xiii

FOREWORD

When one regards the real world of global, national, and local efforts to achieve

peace, equality, and prosperity, it is apparent that the way people conduct poli-

tics relies very signiﬁcantly on values and norms that they believe and act upon.

Such a palpable human context is often lost in academic renderings of politics,

which increasingly rely on sterile formulas of behavior or quanta of manipulat-

able data. This sterility seems also to render much social science alien to the

choices of policymakers, civil society actors, and others in the day-to-day arena

of political action. It has substituted a narrow band of explanatory power for

relevancy.

At the same time, international law and theory also seem disconnected from

daily experience, irrelevant in a world still dominated by state actors and trans-

national forces, an antiquated trope of diplomats. This perception is reinforced

by leaders of hegemonic powers who regard the supposed restraints imposed by

international law as an annoyance to be blocked at every inconvenient turn,

rather than as an opportunity to solve global problems through collective action.

This volume and a series of four workshops were convened by the Social

Science Research Council to try something a little different that would address

the sterility or remoteness of the disciplines and applicability of international

relations (IR) and international law (IL). Begun in the summer of 2001 by Ben

Rawlence of the Program on Global Security and Cooperation, the project con-

vened leading academics from both ﬁelds, men and women with real-world

experience and a demonstrated capacity for inter-disciplinarity, a hallmark of the

SSRC. In its simplest formulation, the project mission was to explore how

norms were manifested through law. As Rawlence recalled to me recently,

“Bringing legal perspectives to bear on conventional IR ways of understanding

international problems would, it was hoped, promote a better understanding of

how law worked to inﬂuence outcomes and thus to reinvigorate arguments

within IR that law mattered. And ﬂowing from that is that [empirical] scholar-

ship mattered in helping to shape laws and the perspectives of law makers.”

We adopted a case-study approach, and sought out complexity and relevance

in these cases. The four that were adopted, and guided by the exceptional skill of

Veronica Raffo, were the attempt to enact international legal restrictions on the

xiv

ﬂow of small arms and light weapons; the ways the international community

would deal with terrorism; the treatment of tens of millions of internally dis-

placed persons worldwide; and international criminal accountability. To some

extent, these choices were driven by opportunity and headlines, but those are not

necessarily poor criteria. We wanted to demonstrate relevance by engaging

issues of terrorism and the culpability of criminal regimes. In examining the

legal status of internally displaced persons (IDPs), we had the unusual advantage

of Ambassador Frances Deng’s participation. He, more than anyone, had been

responsible for creating and trying to implement norms as the UN Secretary-

General’s Representative on IDPs. We took on the small arms issue ﬁrst, in part

because it was receiving little attention from American policymakers (who

oversee the world’s largest export system), had a sizable and sophisticated

community of researchers and activists, but was highly problematic with respect

to solutions through international law.

The SSRC program always stressed the signiﬁcance of social science

research as a problem-solving enterprise, problems that afﬂict people the world

over. Bringing these publicly spirited scholars together with practitioners –

among them activists, judges, and government ofﬁcials – was intentional, both

to enrich the data scholars require and to provide a space and context for practi-

tioners to reﬂect and learn. This project, perhaps more than any other, seemed to

succeed in this way remarkably well.

As usual, there are many to thank for this at SSRC and elsewhere. These

include the dozens of workshop participants, some of whose work is presented

here. We are grateful as well to the foresight and generosity of our donor, the

William and Flora Hewlett Foundation, and its program head, Melanie Green-

berg. Intellectual work such as this is among the most satisfying one can pursue

– it is both exciting as a complex puzzle and worthwhile because it can lead to

enlightened action. We certainly know it met the ﬁrst expectation, and hope it

will fulﬁll the second one as well.

John Tirman

Cambridge, Massachusetts

August 2006

FOREWORD

ACKNOWLEDGMENTS

This volume developed out of a research project sponsored by the Program on

Global Security and Cooperation at the Social Science Research Council (SSRC),

New York. We are thankful to John Tirman and Ben Rawlence, Program Director

and Program Coordinator respectively at the SSRC, who designed the original

structure of the project in July 2001. The project was further developed with the

intellectual input of a “core group” of scholars that was convened by the SSRC to

provide advice and guidance for the project. The members of this group were:

Kenneth Abbott, Arizona State University; Thomas Biersteker, Brown Univer-

sity; Clarence Dias, United Nations; Martha Finnemore, George Washington

University; Harold Koh, Yale University Law School; Sally Falk Moore, Harvard

University; Anne-Marie Slaughter, Princeton University; Peter Spiro, University

of Georgia Law School; Chandra Lekha Sriram, University of East London; and

Nicholas Wheeler, University of Wales, Aberystwyth. Our thanks go to them as

well, for their insightful advice and active engagement throughout the life of this

project. The project received ﬁnancial support from a grant from The William

and Flora Hewlett Foundation, for which we are grateful.

The project took the form of a workshop series on different policy areas:

Small Arms and Light Weapons Proliferation (workshop held in February

2002); Terrorism (workshop held in November 2002); Internally Displaced

Persons (workshop held in June 2003); and International Criminal Accountabil-

ity (workshop held in November 2003). Many of the chapters in this book are

expanded versions of the papers presented at these meetings. We would like to

thank all the speakers and participants at these workshops for their thought-

provoking presentations, engaged discussions, and insightful analysis.

We take this opportunity to recognize the intellectual, editorial, and adminis-

trative support of the staff at the Program on Global Security and Cooperation at

the SSRC, whose prodding, skills, and efﬁciency were absolutely essential to

this project: John Tirman, Itty Abraham, Petra Ticha, Maggie Schuppert, Karim

Youssef, Thodleen Dessources, and Sion Dayson. A special thank you to all of

them.

Finally, we thank our editor Andrew Humphrys at Routledge, for his interest

in and support for this volume.

xvi

INTRODUCTION

International law and international politics –

old divides, new developments

Veronica Raffo, Chandra Lekha Sriram, Peter Spiro, and

Thomas Biersteker

Introduction: law and politics after the Cold War

Since the end of the Cold War, the international political terrain has altered

signiﬁcantly. We no longer live in a world of discrete national communities, but

rather in a world of increasing economic, political, and cultural interdependence,

where the trajectories of countries are heavily enmeshed with each other, and

where the very nature of everyday processes links people together across borders

in multiple ways. Globalization, understood as a multidimensional phenomenon,

has put pressure on polities everywhere, gradually circumscribing and delimiting

political power.

The operation of these transnational social forces has had a pro-

found effect on both the functioning and the conceptualization of international

law and international politics.

The end of the Cold War heralded the end of a bipolar world in which law

was subjugated to the imperatives of superpower spheres of inﬂuence. Pressures

from below, such as from nongovernmental organizations (NGOs), and “global

civil society,” have brought the rights agenda to the fore, calling into question

the absolute and unfettered sovereignty of the nation-state over its citizens.

With the perceived transformation of state sovereignty as the basis for power

politics, the structure of international relations has changed: issues that tran-

scend or disrupt traditional state interests, such as arms ﬂows, human rights, ter-

rorism, migration and displacement of populations, international ﬁnance, and the

increasingly legalized nature of relations at the multilateral level, have risen to

prominence. In this process, international law has increasingly embraced a

broader variety of actors, overturning the exclusive position of the state and but-

tressing the role of suprastate, substate, and nonstate actors.

To study these emerging governance phenomena and questions of codiﬁca-

tion and enforceability of international law, new approaches to research are

needed that can link macrosystemic-level analysis with detailed ﬁeldwork.

Locating the nexus of different types of authority and power, and then further

analyzing the drivers of social and legal processes within a web of overlapping

political and legal jurisdictions, is a task that requires a multidisciplinary

approach.

We intend this volume as an initial effort toward building such a knowledge

base, and seek to contribute to a deeper understanding of how international law

can be adapted to today’s security challenges. The contributors not only examine

the opportunities for interdisciplinary collaboration between the ﬁelds of inter-

national law (IL) and international relations (IR), but also initiate a research

agenda, build an empirical base, and offer a multidisciplinary approach designed

to provide concrete answers to real-world problems of governance, engaging

both the theory and the practice of global security.

Genesis of the project

In July 2001 the Global Security and Cooperation program of the Social Science

Research Council (SSRC) convened highly recognized scholars in IR and IL for

a planning meeting for a new research project.

This SSRC initiative was aimed

at forging collaboration between the ﬁelds of international law and international

relations, both in theory and in practice, in order to address contemporary global

security challenges. The project concentrated upon three central questions: (1)

To what extent are international norms manifested through law? (2) In what

ways can methodological and theoretical collaboration between the ﬁelds of IR

and IL be fostered? (3) In what ways can social science research be mobilized

effectively to enhance our knowledge about the utility of international norms

through law?

The project drew on the expertise of a core group of scholars,

who chose a

case-study approach to go beyond abstract meta-theoretical discussion of the

relationship between IL and IR and concentrate on fresh approaches to urgent

problems of international security and governance. The goal was the production

of new knowledge as well as bridging the gap between relevant scholars and on-

the-ground practitioners in a systematic and innovative way. The core group also

identiﬁed several policy challenges crucial to the achievement of a sustainable

global peace, challenges that require new research and new ways of applying

research and scholarship. The four policy areas selected by the group were small

arms and light weapons (workshop held in February 2002), terrorism (workshop

held in November 2002), internally displaced persons (IDPs) (workshop held in

June 2003), and international criminal accountability (workshop held in Novem-

ber 2003). This volume is organized into distinct sections that engage these spe-

ciﬁc policy challenges, in the order in which the workshops devoted to them

occurred.

The purpose of the workshops was to examine these policy problems through

the lenses of different legal and social science methods in order to illuminate

how law and political processes intersect to inﬂuence the possibilities for inter-

RAFFO ET AL.

national cooperation. By examining speciﬁc challenges in international politics

through crosscutting theoretical frames, this project sought ﬁrst to generalize

about the cases and contribute to theory-building on the structure and efﬁcacy of

international mechanisms for regulating transnational governance issues; and

second, to apply these theoretical insights in the service of case-speciﬁc policy

problems and provide practitioners with empirical research on which to base

negotiations or advocacy efforts. The workshops thus were aimed at clarifying

the variables at play in each case in order to assist those practitioners who are

committed to enhancing global security by the application of norms through law.

The evidence of the politico-legal process at work in international affairs con-

tributed, simultaneously, to an ongoing examination of the theoretical and

methodological habits of the scholarly disciplines of law and international

relations.

In order to foster greater interaction between practitioner experience and

more theoretical approaches, the workshops were structured in such a way that

each panel would feature practitioners (including policymakers working for

governmental agencies as well as international organizations, and also NGO

activists) and scholars from different disciplines.

In discussions at the workshops, the advantage of approaching these policy

problems from the intersection of IL and IR became evident. On the one hand,

IL as a discipline has suffered from overreliance on legal cases involving states

without paying due attention to case studies (a new method for IL) rather than

cases seeking adjudication, or without paying due attention to nonstate actors,

who are increasingly the greatest perpetrators and victims of violence and con-

ﬂict. On the other hand, IR has focused mainly on power and state-to-state rela-

tions, leaving out considerations of justice, nonstate actors, sustainable peace,

international crime, and violence and its means. When these considerations cross

international borders, as they increasingly do, neither traditional IR nor IL –

taken alone – is sufﬁcient.

This volume is intended to bridge the analytic and methodological shortcom-

ings of both ﬁelds while also drawing on their respective strengths. Through

case studies concerning some of the most pressing problems facing the world

today, the distinguished contributors to this volume seek to ground discussions

of norms, justice, peace, violence, and conﬂict in relation to the real world and

thereby move beyond the existing limits of both disciplines.

International law and international relations: deﬁning the

gap, bridging the gap

The ﬁelds of international law and international relations have become increas-

ingly intertwined in recent years, beginning to reverse a long tradition of

viewing them as separate arenas. For several decades, this tradition was

reinforced by the development of the academic disciplines of both international

relations and international law.

INTERNATIONAL LAW AND INTERNATIONAL POLITICS